Professional Documents
Culture Documents
United States v. Juan Fernandez, 829 F.2d 363, 2d Cir. (1987)
United States v. Juan Fernandez, 829 F.2d 363, 2d Cir. (1987)
2d 363
24 Fed. R. Evid. Serv. 12
William E. Simon, Jr., Asst. U.S. Atty. (Rudolph W. Giuliani, U.S. Atty.
for S.D.N.Y., and Bruce A. Green, Asst. U.S. Atty., of counsel), for
appellee.
Louis M. Freeman, New York City (Freeman, Nooter & Ginsberg, of
counsel), for defendant-appellant.
Before WINTER and MAHONEY, Circuit Judges, and RE.*
PER CURIAM:
There was evidence at trial that Fernandez, along with named co-conspirator
Hector Cedeno (a/k/a "Luis Gonzalez"),1 negotiated by telephone with DEA
Special Agent Armando Marin to purchase 400 pounds of marijuana. The day
after the phone negotiation, appellant and Cedeno were driven by Cedeno's
mother, Carmen Cedeno,2 a cab driver who was driving her taxicab, to the
apartment of co-defendant Marino Jerez.3 Special Agent Marin and two other
agents met Fernandez, and, according to Marin's testimony, Fernandez
identified himself as the person with whom Marin had spoken over the
telephone. After initial preparations were made for moving bales of marijuana
into Jerez's apartment, the agents arrested appellant, Jerez, Hector Cedeno and
Carmen Cedeno. The agents seized a loaded semi-automatic handgun from the
apartment, and $85,000 in cash from the trunk of the car.
3
At trial, Carmen Cedeno testified about the activities of appellant and her son
on the day of the arrest. Reference was made to the fact of her cooperation
agreement, both in the government's opening statement and on direct
examination. Defense counsel did not question her on cross examination
concerning her cooperation agreement. On redirect, the government offered the
agreement into evidence and it was admitted over objection. The agreement
was not read into evidence, however, and it was not sent into the jury room.
The gun seized from Jerez' apartment was offered by the government as
evidence. After hearing defense objection that the prejudicial impact of the
evidence would outweigh its probative value because the gun belonged to
Hector Cedeno, a co-conspirator who was not on trial, Judge Griesa admitted
the gun.
Appellant also testified at trial, and his defense was that he knew about the
drug transaction, but that he merely accompanied Hector Cedeno to the scene
and had no stake in the venture. On cross examination, the government
questioned Fernandez about previous narcotics negotiations with an undercover
DEA agent and showed Fernandez a copy of an "official DEA report." This
testimony was later stricken, the report was never admitted nor the jury
informed of its contents, and the jury was instructed to disregard the whole line
of questioning.
Finally, on the penultimate day of trial, when all that remained were the
summations, Fernandez did not appear in court. Judge Griesa granted a one-day
continuance and issued a bench warrant. On the following day, January 8,
Judge Griesa inquired of Fernandez's attorney, a U.S. Marshall and a DEA
agent whether Fernandez had been located. The attorney said that he had
telephoned Fernandez hourly, without response. The Marshall described his
unsuccessful efforts to locate Fernandez at home and his interviews with
Fernandez's neighbors, which indicated that Fernandez might have fled his
apartment. The DEA agent said that FBI records indicated that Fernandez had
not been arrested. The judge then granted the government's motion for trial in
absentia.
Appellant raises four issues on appeal. Only the first, his claim concerning the
Here, there was reference, without objection, to the existence of the cooperation
agreement in the prosecutor's opening statement and during the direct
examination of Carmen Cedeno. The testimony on direct as to the existence of
the agreement may have gone too far, since the witness actually stated that the
Government agreed to "dismiss my charges if I said the truth." Tr. 105
(emphasis added). See Borello, 766 F.2d at 57 (before impeachment, witness
may testify only about those portions of agreement that indicate witness's
"motive for cooperating with the Government," not about those portions that
bolster witness's credibility); United States v. Jones, 763 F.2d 518, 522 (2d
Cir.1985) (Government may elicit testimony concerning "truth-telling portions
of cooperation agreements" on direct examination only when there has been an
attack on credibility during opening statements by defense counsel). But
defense counsel did not object, and any error is therefore not reversible.
10
11
13
Fernandez's claim that he should not have been tried in absentia is without
merit. Judge Griesa applied the criteria set forth in United States v. Tortora, 464
F.2d 1202 (2d Cir.), cert denied, 409 U.S. 1063, 93 S.Ct. 554, 34 L.Ed.2d 516
(1972), and correctly found that the defendant had waived his right to be
present at trial by voluntarily absenting himself without excuse. Fernandez had
been present on the afternoon of January 6, 1986 when the Court adjourned,
and thus knew that the trial would continue at 10:00 a.m. on January 7. At the
time of the government's application, Fernandez had been absent for more than
twenty-four hours, his lawyer was unable to locate him, and there was no
indication that he would return soon. Failing to try Fernandez in absentia would
have resulted in separate trials in a case in which the evidence against the
defendants was virtually identical, would have caused delay potentially
affecting the recollection of some witnesses, and would have increased the
exposure of, and resultant risk to, the undercover officer. Moreover,
Fernandez's absence was not improperly used to influence the jury, as the
government never called attention to his absence or argued that any negative
inferences could be drawn from it, and Judge Griesa explicitly instructed the
jury to disregard Fernandez's absence.
14
The district court also properly allowed questions concerning Fernandez's prior
narcotics negotiations with an undercover agent. Where, as here, the defendant
does not contest that he was present during a narcotics transaction but denies
any wrongdoing, the use of such evidence is proper. See United States v.
Martino, 759 F.2d 998, 1004-05 (2d Cir.1985). In any event, there was no
conceivable prejudice, as Judge Griesa ultimately instructed the jury to
disregard this evidence. See, e.g., United States v. Nixon, 779 F.2d 126, 133
(2d Cir.1985) (curative instruction to disregard informant's statement that
defendant had been previously arrested for heroin smuggling).
15
Finally, Judge Griesa acted within his discretion in admitting the revolver
seized from Jerez's apartment, over the defense's objection that the danger of
unfair prejudice outweighed the probative value of the evidence. Fed.R.Evid.
403. Even if the fully loaded gun did not belong to appellant, it did belong to a
named coconspirator and it was seized from the scene of the drug transaction.
The gun was thus highly probative of the existence of a narcotics conspiracy.
Where a loaded gun has been seized from an apartment that was "the focal
point of the [narcotics] conspiracy," the Second Circuit has held that such
evidence has significant probative value. United States v. Wiener, 534 F.2d 15,
18 (2d Cir.1976). Accord: United States v. Alvarez, 755 F.2d 830, 849 (11th
Cir.1985); United States v. Perez, 648 F.2d 219, 224 (5th Cir.1981). The
Wiener court observed: "Experience on the trial and appellate benches has
taught that substantial dealers in narcotics keep firearms on their premises as
tools of the trade almost to the same extent as they keep scales, glassine bags,
cutting equipment and other narcotics equipment." 534 F.2d at 18. Under
circumstances similar to those in the present case, the court held "that the gun
was relevant to the issues upon which Weiner was tried and that the court did
not abuse its discretion in holding that its probative value was not overbalanced
by the inflammatory tendency of the gun as evidence." Id.
16
Affirmed.
Carmen Cedeno was charged as a co-defendant, but charges against her were
dismissed pursuant to a cooperation agreement
At one point, the government objected to the repeated questioning on this issue.
The objection was overruled. Tr. 114
First she merely said "they knocked." Tr. 112. During the persistent questioning
on the point, she said "one of them knocked," Tr. 113, and "I do not know
which of the two people knocked," Tr. 114
Actually, Borello states the quite different proposition that such error "cannot
always be harmless." 766 F.2d at 57